The EU law on the handling of personal data, The General Data Protection Regulation, is often referred to as GDPR.
In this article, we give a comprehensive introduction to the GDPR and a hands-on guide as to what the new rules mean for you and your website.
GDPR and cookies
The GDPR is a EU regulation that represents the most significant initiative on data protection in 20 years.
The purpose is to protect “natural persons with regard to the processing of personal data and on the free movement of such data”, e.g. the website user.
Cookies are mentioned once in the 88 pages long regulation. However, those few lines have a significant impact on the compliance of cookies:
(30): “Natural persons may be associated with online identifiers […] such as internet protocol addresses, cookie identifiers or other identifiers […]. This may leave traces which, in particular when combined with unique identifiers and other information received by the servers, may be used to create profiles of the natural persons and identify them.”
In other words: when cookies can identify an individual, it is considered personal data.
What’s the deal with cookies anyway?
Cookies are small files that are automatically dropped on your computer as you browse the web. In and of themselves they are harmless bits of text that are locally stored and can easily be viewed and deleted.
But cookies can give a great deal of insight into your activity and preferences, and can be used to identify you without your explicit consent.
This represents a major breach from a legal point of view, and as data technologies grow more and more sophisticated, your privacy as a user is increasingly compromised.
Often, the cookies don’t even origin from the website you are visiting, but from third parties that track you for marketing purposes. All of which is going on “behind the scenes”.
While not all cookies are used in a way that could identify users, the majority (and the most useful ones to the website owners) are, and will therefore be subject to the GDPR.
Cookies for analytics, advertising and functional services, such as survey and chat tools, are all examples of cookies that can identify users.
The problem with cookies is both one of privacy - what is being registered? - and one of transparency - who is tracking you, for what purpose, where does the data go, and for how long does it stay?
Requirements: How do you ensure that your website and cookies is compliant with the GDPR?
As a website owner, taking measures to comply means going through your data processes and making sure that the personal data is handled according to the new regulations.
See also the infographic page by the EU: Data protection: Better rules for small business
The General Data Protection Regulation regards e.g. a name, a photo, an email address, bank details, posts on social networking websites, medical information, or a computer IP address as personal data.
If your website or organization processes data that is (a) directly personal, or (b) can be combined or singled out to identify an individual, then it must be revised to meet the requirements.
Map and evaluate the sensitive data in your organization, go through your security policies and make sure that the data is secure.
The two primary aspects to be aware of are:
- How you store customer and user data in your organization, and
- The cookies on your website (first-party and third-party alike).
What features should be present in a GDPR-compliant cookie consent?
One of the most tangible requirements of the GDPR is in the definition of what constitutes a proper cookie consent, meaning, that the consent has to be:
- Informed: Why, how and where is the personal data used? It must be clear for the user, what the consent is given to, and it must be possible to opt-in and opt-out of the various types of cookies.
- Based on a true choice: This means, for example, that the user must have access to the website and its functions even though all but the strictly necessary cookies have been rejected.
- Given by means of an affirmative, positive action that can not be misinterpreted.
- Given prior to the initial processing of the personal data.
- Withdrawable. It must be easy for the user to change his or her mind and withdraw the consent.
- The user has the right to be forgotten. At the user’s request, all of his or her personal data must be properly deleted.
- All given consents must be recorded as documentation.
What is a GDPR-compliant cookie banner?
The above requirements renders most of the cookie banners and notifications used prior to the implementation of the GDPR obsolete.
For instance, implied consent and consent given simply by visiting a site is not enough.
The same goes for pop-ups and banners stating ‘By using this site, you accept cookies’.
A simple ok button for accepting cookies is also not sufficient.
For example, this will not do:
Example of a GDPR compliant cookie consent banner
Here is Cookiebot’s own GDPR and ePrivacy compliant notice asking for consent to set cookies:
It complies with the regulations, because of the following:
- First and foremost, albeit invisible to the naked eye, all loaded scripts but the strictly necessary ones are paused until the consent to the cookies has been given. This feature is called ‘prior consent’ and is a requirement of both the GDPR and the e-Privacy Directive. In the GDPR, you must have consent to setting cookies that track personal data, whereas in the ePrivacy Directive, you need user consent before setting any kind of cookies other than the strictly necessary.
- The information about the cookies is accurate and specific, and is presented in a clear and plain language, all requirements of the GDPR.
- If the user chooses to have the details shown, the notice folds out into a complete overview of all active cookies and online tracking in use on the website. The list is based on a monthly scan of all of the pages of the website, that detects and identifies all of the cookies and known tracking technologies in use on the site. The cookies are listed complete with origin, duration and purpose descriptions.
- The cookies are grouped into four intelligible categories, that the user may check or uncheck. Necessary cookies cannot be unchecked, because they are whitelisted and are necessary for the website to function properly. Cookie categories that don’t handle personal data may be pre-checked, whereas those that do, must be actively opted into by the user to be compliant.
- In the example at hand, the preferences and statistics-cookies on the site don’t handle personal data and may therefore be pre-checked. Marketing cookies do track personal data and is therefore by default unchecked.
- The user has access to their state of consent on the website and can at any time change their mind about the consent and choose to withdraw it.
- All given consents are securely stored as documentation that the consent has been given, also a GDPR requirement.
- Every 12 months, upon the user’s first visit to the site, the consent pops up again asking for a renewal of the consent.
The GDPR and the EU ePrivacy Directive requires prior, informed consent of your site users, and the GDPR requires you to document each consent.
At the same time you must be able to account for what user data you share with embedded third-party services on your website and where in the world the user data is sent to.
Overview and accountability for cookies on your website
You can be subjected to controls and be required to account exhaustively for the data processes that are going on in connection to your website.
This is easier said than done, as most websites have a large number of third-party cookies flowing through their system.
Consent requested by means of an affirmative action
The biggest change for cookie and online tracking in regard to the GDPR is that consent must be given by a clear affirmative action.
With the regulations, this is not sufficient. The consent has to be given as an affirmative, positive action, and rejecting cookies must be an actual option.
Possibility to withdraw the consent at any time
The user must have the power to withdraw his or her consent.
It is therefore important to make sure that users have access to their current consent state at all times and can change the settings or withdraw their consent entirely.
Renewal of consent
Every 12 months, the consent should be renewed upon the user’s first visit to the site.
User friendly, no-nonsense dialogue
On the other hand, though, the communication should be clear and easy to understand in order for the user to have a true choice.
With the GDPR and the ePrivacy Directive, the user consent must be given prior to the setting of the cookies. In the GDPR, you need prior consent to setting cookies that track personal data, whereas the ePrivacy Directive is even more far reaching, and requires that you get consent for setting all but the strictly necessary cookies.
Consents must be recorded as evidence
All consents must be securely stored so that they can be used as evidence in case of control.
Be careful, however. We recommend not using templates and generators, because it is a GDPR requirement, that the information about the cookies and tracking should be specific and accurate.
Firstly, all websites are different, and secondly, cookies can change without you even noticing, especially if you make use of third parties such as embedded content, ads, or analytics tools.
This way, the information you provide to your users about the cookies in use on your site is accurate and precise at all times.
How to easily make your cookies and online tracking GDPR and ePrivacy compliant
To meet the requirements, you can either build your own consent setup based on the GDPR. Or you can sign up to Cookiebot, a fully GDPR compliant cookie and online tracking solutions.
A monthly report is generated about the cookies and data processing activity on the website, ensuring that the owner is in control at all times.
User consent is requested by means of a comprehensible banner, where the users can easily opt in and out of the various types of cookies.
The users can at any time access the consent setup and edit or withdraw their consent.
Every twelve months, the consent is automatically renewed upon the user’s first visit to the website.
The communication in the consent banner is user friendly and no-nonsense, offering true transparency but at the same time avoiding information overload.
The consent is requested prior to the setting of the cookies, except for the strictly necessary and therefore also legal ones.
All consents are automatically collected through a secured connection and stored as strongly encrypted keys.
GDPR and types of tracking cookies
On the overall, there exists four different types of cookies, depending on their duration and on their origin.
The GDPR affects all four types, and the origin and duration of the cookies must be presented for the user to accept in an affirmative and informed manner.
Session cookies and the GDPR
These cookies are temporary and expire once the user leaves the site. Session cookies are mainly used by webshops to hold items in the basket while the user is shopping online.
In general terms, if cookies track personal data, they are subject to the GDPR. Session cookies usually are of first party provenance and enable the necessary functioning of the website.
Therefore, they rarely are subject to the data protection regulation.
Permanent cookies and the GDPR
Permanent cookies are all those cookies that aren't deleted from the user's browser once they end their session on a website.
Their duration depends on the date of expiry written in them.
By law, they should be deleted every 12 months in the least, but a cookie might stay on the disk forever.
Permanent cookies can be set by the website itself or by third parties in operation on the website.
The data they store, and therefore, whether or not they are subject to the GDPR, depends on their purpose.
An example of permanent cookies are the ones holding data such as login details, contact information and account numbers, so that the user doesn’t have to type them in every time they use the site.
But permanent cookies can serve any number of purposes.
If the cookie tracks data deemed personal according to the definition of the GDPR, then it is subject to the regulation, and you must obtain compliant user consent prior to the use of the cookie.
First-party cookies and the GDPR
First-party cookies are issued from the website itself. These cookies often serve to give memory to the website about the user's data and preferences.
In general terms, most cookies of third party provenance are the ones tracking personal data. This, however, does not automatically whitelist first party cookies.
It depends what data the cookie is tracking.
If the data can - by itself or combined - identify a specific individual, then it is personal data, and you need your users' consent for setting them.
Third-party cookies and the GDPR
Third-party cookies are cookies that are set by third parties in operation on your website. If you are using analytics, are displaying ads, have embedded content, or your website is hosted, then you have third party cookies in operation on your website.
The headache for website owners is that third party cookies can be hard to have a complete and lasting overview over, as they tend to change often.
What is their purpose, where do they come from, what data are they collecting and where in the world is it sent to?
As a website owner, you are held accountable for the tracking of personal data from your website, and you have the obligation to inform your users about it and protect their data according to their state of consent.
You may take an audit of your website to get a picture of the cookies in use on your site.
The free audit scans up to five subpages of your site and sends you a report on all the cookies and tracking on these pages.
The aim of third-party cookies is often to collect certain information to carry out various research into behaviour, demographics and not least for targeted marketing etc.
What is the GDPR?
The General Data Protection Regulation (GDPR) is an EU-wide legislation that regulates - among other things - how websites handle personal data.
It is the most significant initiative on data protection in 20 years and has major implications for any organization in the world, serving individuals from the European Union.
To give people control over how their data is used and to protect "fundamental rights and freedoms of natural persons", the regulation sets out strict requirements on data handling procedures, transparency, documentation and user consent.
As a data controller, any organization must keep record of and monitor personal data processing activities.
This includes personal data handled within the organization, but also by third parties - so-called data processors.
Data processors can be anything from Software-as-a-Service providers to embedded third party services, tracking and profiling visitors on the organization’s website.
Both data controllers and processors must be able to account for what kind of data is being processed, the purpose of the processing and to which countries and third parties the data is transmitted.
Data may only transfer to other GDPR compliant organizations, or those within jurisdictions deemed 'adequate'.
No processing of sensitive personal data is allowed without a person’s explicit consent. For non-sensitive data, implied consent will do.
In either case the consent must be freely given on basis of clear and specific information about data types and purpose – and always before any processing takes place, also known as ‘prior’ consent.
All consents must be recorded as evidence that consent has been given.
Individuals now have the "right of data portability", the "right of data access" along with the "right to be forgotten" and must be able to withdraw their consent whenever they want.
In such case the data controller must delete the individual’s personal data if it's no longer necessary to the purpose for which it was collected.
In case of a data breach, the company must be able to notify data protection authorities and affected individuals within 72 hours.
Furthermore, GDPR imposes an obligation on public authorities, organizations with more than 250 employees and companies processing sensitive personal data at a large scale to employ or train a data protection officer (DPO).
The DPO must take measures to ensure GDPR compliance throughout the organization.
In relation to Brexit, the UK government plans to implement equivalent legislation that will largely follow the GDPR.
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance)
What is the GDPR-definition of personal data?
In the General Data Protection Regulation, the data to be protected is defined as follows (our italics):
(26): The principles of data protection should apply to any information concerning an identified or identifiable natural person.
Personal data which have undergone pseudonymisation, which could be attributed to a natural person by the use of additional information should be considered to be information on an identifiable natural person.
To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly.
To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments.
The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable.
This Regulation does not therefore concern the processing of such anonymous information, including for statistical or research purposes.
GDPR enforcement date: 25th of May 2018
An EU legislation of this size and importance is the result of a lengthy process.
In January 2012, the European Commission proposed a comprehensive reform of the data protection rules from 1995, (the 95/46/EC DIRECTIVE), bringing Europe up to date with the digital age.
On 4 May 2016, the official texts of the Regulation and the Directive were published in the EU Official Journal in all the official languages.
The regulation was enforced on 25 May 2018.
Since this date, organizations who fail to meet the requirements or document their efforts to comply risk penalties of up to €20 million or 4% of the company’s global annual turnover of the previous financial year, whichever is higher.
What the EU’s General Data Protection Regulation means for website compliance
How do you make your website gdpr compliant and what is the general data protection regulation anyway?
“6 steps to GDPR compliance” in Information Age Digital Edition
Informative blogpost on GDPR-consent
How the GDPR affect cookie policies
GDPR: When do you need to seek consent
Data protection - Better rules for small business
2018 reform of EU data protection rules
Video: GDPR in 97 seconds